Through a shareholders’ agreement, the members of a company (partners or shareholders) may agree on additional matters to those established in its bylaws regarding particular requirements, by a private agreement that doesn’t require inscription in the commercial registry.
A shareholders’ agreement may regulate obligations and rights that are not set forth in the bylaws, and concur on the way shareholder’s will interact between themselves and the company. For example, such agreements are typically found on venture capital transactions where companies participating in investment rounds have multiple partners or shareholders with different objectives and interests in the company.
In general, the regulation of shareholders’ agreements applicable to commercial companies regulated under the Code of Commerce can be found in article 70 of Law 222 of 1995, whilst, article 24 of Law 1258 of 2008 regulates the specific case of the simplified joint stock companies (“S.A.S.”). Hereunder, some key aspects of both regulations are exposed:
Per last, according to the stance expressed in concept 220-253291 of November 24, 2022 of the Superintendence of Companies, it is worth reiterating that the prohibition to execute a shareholders’ agreement in a S.A.S. by a member who is also an administrator of the company is not applicable, and its content may include any lawful matter, unlike to the particular case of the companies regulated by the Code of Commerce, regarding what it is set forth in article 70 of Law 222 of 1995.
In such sense, in the shareholders’ agreements executed in a S.A.S., the above-mentioned formalities must be complied in order to enforce its legal effects, that is, the shareholders’ agreement must be recorded in writing, its content must not contravene any provision of the company’s bylaws and the applicable law and shall be deposited before the company.